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ADMINISTRATIVE APPEALS TRIBUNAL
NATIONAL CONFERENCE
21-24 October 2007

How universal are international human rights principles?

The Hon John von Doussa, Q C, President, HREOC


Introduction

Human rights are said to be universal and indivisible. This paper explores how far that universality introduces human rights principles into the functions and work of twhe Administrative Appeals Tribunal (AAT). The answer, I think, could be “further than you realise”.

In order to explore this proposition, let me start with the big picture, the international human rights framework, then come to Australia, then to the AAT.

Human Rights – the International Context

The Origins of International Human Rights

The establishment of the United Nations (UN) in 1945 ushered in a new period of universal respect for human rights following the devastation and atrocities of the Second World War.

The UN Charter contains the first explicit recognition in international law that an individual is entitled to the observance of fundamental rights and freedoms.1 However, it did not catalogue those rights and freedoms, but left that task for further development. This process of development commenced with the introduction of the Universal Declaration of Human Rights (UDHR), which was drafted by the Commission on Human Rights2 in 1947, and adopted by the General Assembly of the United Nations on 10 December, 1948.3 Contemporary human rights law traces back to, and is based upon the UDHR.

The UDHR sets out, in succinct terms, the fundamental rights and freedoms that all human beings, regardless of race, colour, sex, language, religion, political or other opinion, ethnicity and national background are entitled to enjoy.  In one form or another, these rights have been recognised for centuries, but it was not until the UDHR that they were comprehensively codified with the support and agreement of the international community.4 

These rights have deep roots in the traditions of all peoples. They are not just a construct based on Western ideals. The drafters of the Declaration drew upon the principles enshrined in national laws and constitutions.  They referred not only to common law systems of justice, but also to civil law countries and socialist systems. They did so in order to make certain its universal application.

The human rights enshrined in the UDHR have been further articulated in subsequent conventions.  In 1966, the International Covenant on Civil and Political Rights5 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights6 (ICESCR) were adopted by the General Assembly, and entered into force internationally in 1976.7  Together, the UDHR, these treaties, and their optional protocols8 constitute an International Bill of Rights.

Many of the principles in the International Bill of Rights reflect the meaning and content of the notions of the rule of law and democracy.  The rule of law is expressed in the principle that all are equal before the law and are entitled, without discrimination, to the equal protection of the law.  It is also embodied by the principle that no one shall be subjected to arbitrary interference with their rights and freedoms.9   Democratic principles are inherent in the right to self-determination, the right of freedom of peaceful assembly and association and the right to take part in the government of the country directly or through freely chosen representatives.10

Other major human rights treaties dealing with specific subjects have since been adopted by the General Assembly, and ratified by the vast majority of nations.  They include the Convention on the Elimination of all Forms of Racial Discrimination (CERD);11 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW);12 the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);13 the Convention on the Rights of the Child (CRC);14 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (MWC);15 and, most recently, the Convention on the Rights of Persons with Disabilities which was adopted by the General Assembly in December 2006, and opened for signature on 30 March 2007.

By ratifying or acceding to a human rights treaty the signatory State undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised by the particular Covenant.16

However, there are some prohibitions that have become part of international custom and are therefore binding on all States, regardless of whether they have ratified the specific treaties mentioned above.17 There are differing views as to whether all of the rights embodied in the UDHR have, through their widespread and consistent international acknowledgement, become part of customary international law.  Nevertheless, it is now generally accepted that some rules, at least, have become custom; namely, the prohibitions against slavery, torture, arbitrary detention, and systematic racial discrimination.

Human Rights – the Domestic Law Context

International obligations enacted into domestic law

Whilst States are bound in international law by the treaties they have ratified and by international custom, in many States human rights so recognised do not become part of domestic law until the State has enacted them as such.18

In Australia, federal Parliament has incorporated substantial parts of a number of the major human rights Conventions into Australian domestic law. The following list gives examples, and identifies the related treaty:

  • Racial Discrimination Act 1975 (the RDA) CERD
  • Sex Discrimination Act 1984 (the SDA) … CEDAW
  • Disability Discrimination Act 1992 (the DDA) ICCPR and ILO Convention      111Concerning Discrimination in Respect of Employment and Occupation
  • Age Discrimination Act 2004 (the ADA) ICCPR and ILO Convention 111
  • Privacy Act 1988 … ICCPR
  • Crimes (Torture) Act1988 … CAT
  • Evidence Act 1995 … ICCPR
  • Human Rights and Equal Opportunity Commission  Act 1986 (the HREOC Act)ICCPR, CRC, ILO Convention 111, Declaration on the Rights of Mentally Retarded Persons, Declaration on the Rights of Disabled Persons.

In the first four of these examples, the legislation renders specified conduct in aspects of public life in Australia unlawful, and provide for judicially enforceable remedies. For example, discrimination in the workplace, or in the provision of services on the ground of race, sex, or mental or physical disability is unlawful. Complaint may be made in the first instance to the Human Rights and Equal Opportunity Commission (HREOC), and if the matter is of substance and cannot be conciliated, HREOC issues a Notice of Termination which triggers the jurisdiction of the Federal Court and the Federal Magistrates Court to determine the complaint. The courts are empowered to award a wide range of remedies, including damages.

The position under the HREOC Act is different. The ICCPR, CRC, ILO Convention 111, and certain Declarations are scheduled to the Act, or declared under s 3 of the Act, and ‘human rights’ for the purpose of the Act are defined as the rights recognised in these Instruments. The HREOC Act sets up two complaint mechanisms: one for persons aggrieved by ‘an act or practice’ by or on behalf of the Commonwealth, or under a federal enactment which is inconsistent with a defined human right; and the other for an act or practice by or on behalf of a State, under a State law or in a State in relation to equality of opportunity in employment. Under these mechanisms a complaint may be made to HREOC. HREOC is directed to endeavour to conciliate it, but if this is not possible, and the President of HREOC considers the complaint is substantiated, a report is made to the Attorney-General who must table it in Parliament. Under this Act the Federal Court and the Federal Magistrates Court have no jurisdiction to determine the complaint.

The High Court and the Federal Court have laid down principles for the interpretation of Acts that enact treaty obligations, either in whole or in part, into statute law. These principles are general in their application, not confined to human rights treaties:

  1. where the provision of a treaty is transposed into the statute, the language of the statute should carry the same meaning as in the treaty;19
  2. primacy should be given to the text of the treaty with consideration of the context, objects and purpose of the treaty;20
  3. in ascertaining the meaning of a provision in the treaty, the Court may apply the international rules for treaty interpretation, namely article 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.21 The court can also seek assistance from the jurisprudence developed by specialist international courts, tribunals and specialist UN Committees;22
  4. where the statute is intended to give effect to an international human rights treaty, the statutory provisions should be beneficially construed.23

Where treaty obligations are not enacted into domestic law

In situations where Australia has failed to incorporate a human rights treaty into domestic law this does not mean that the treaty is to be disregarded.

To begin with, a treaty may provide the context for domestic legislation which is intended to operate in conjunction with Australia’s international law obligations. The Migration Act 1958 is an example directly relevant to a jurisdiction of the AAT. That Act does not incorporate the Refugees Convention.24 Rather, a separate visa category is established for people to whom Australia owes protection obligations under the Refugees Convention. Thus Australia’s obligations to grant protection to an asylum seeker are determined partly by international human rights law, and partly by the specific provisions of the Migration Act which have application in the particular circumstances of a case.

Even where there is no express reference in a statute to Australia’s international law obligations or to international human rights principles they may nevertheless have relevance: either as aids to interpretation, or because of the concept of ‘legitimate expectation’ in administrative decision making.

In statutory interpretation, there is a presumption that Parliament intended to legislate in accordance with its international obligations,25 and that a statute should be interpreted and applied, as far as its language admits, to be consistent with established rules of international law.26 In the case of ambiguity, an interpretation should be preferred that advances Australia’s international treaty obligations.27

In administrative decision making, the concept of ‘legitimate expectation’ gained prominence through the 1995 decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh.28 Teoh had been in Australia since 1988 on a temporary entry permit. In that year he married an Australian citizen who had four children. He and his wife had a further three children. In November 1990 he was convicted of a series of drug offences and sentenced to six years imprisonment. At the time he had an application for residency pending. After the conviction, a delegate of the Immigration Minister refused that application on the ground that Teoh was not of good character. On review, the Immigration Review Tribunal recommended against allowing the application, notwithstanding many testimonials provided by Teoh as to his close relationship with his wife and children and the impact his deportation would have on them.  A deportation order was subsequently made based on that recommendation.

Shortly before the delegate’s decision to refuse residency, Australia had ratified the Convention on the Rights of the Child (CRC). Article 3(1) of CRC provides that: In all actions concerning children….courts of law, administrative tribunals or legislative bodies, the best interests of the child shall be a primary consideration. Australia had not incorporated the CRC into domestic law. However, a declaration had been made shortly after Australia ratified the CRC that it was an international instrument relating to human rights for the purpose of the HREOC Act.

The Federal Court, on an application under the Administrative Decisions (Judicial Review) Act  1977, set aside the decisions on the ground that a relevant consideration had not been taken into account; namely that the best interests of the children, who’s family unit would be broken up, had not been treated as a primary consideration. This decision was upheld by the High Court (Mason CJ, Deane, Toohey and Gaudron JJ; Mc Hugh J dissenting).

The Court held that the declaration of the CRC for the purpose of the HREOC Act did not incorporate the CRC into domestic law. However, in their joint judgement, Mason CJ and Deane J said:

…ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration"(footnotes omitted).29

This passage asserts that the obligation accepted by Australia on ratification of the treaty becomes a relevant matter that decision-makers are bound to address when making a substantive decision on the merits.

Mason CJ and Deane J went on to say30 that the existence of the legitimate expectation did not require the decision-maker to act in a particular way, for to so hold would be tantamount to treating it as a rule of law and incorporating the treaty requirement into domestic law by the back door. However, it did require that if a decision contrary to the principle that the best interests of the children were a primary concern was proposed, procedural fairness required that the decision-maker give the children notice and an adequate opportunity to present a contrary case. No notice to that effect had been given; rather the decision-makers had treated the good character of Teoh as the principle requirement, without treating the best interests of the children as a primary consideration.

Thus, in the opinion of Mason CJ and Deane J the ratification of the treaty gave rise to both a substantive benefit in the decision making process, and a procedural requirement to ensure procedural fairness.

The generality and scope of Teoh has been questioned in subsequent decisions by the High Court,31 in particular Re Minister for Immigration and Multicultural Affairs; Ex parte Lam.32 It should be noted that in Lam neither party challenged the correctness of Teoh. However, McHugh, Gummow and Callinan JJ expressed the view that the doctrine of legitimate expectation was limited to procedural rights and could not give rise to substantive rights .  

However, once it is accepted that Teoh requires that the legitimate expectation be observed as a requirement to ensure procedural fairness,33 one must ask: why should a decision-maker go through this procedural process unless the information that could be forthcoming was relevant to merits of the issue at hand?  In the judgement of Mason CJ and Deane J, it was because the best interests of the children as a primary consideration was relevant to the substantive decision that led to the procedural requirement. Further, the judgements of both Toohey and Gaudron JJ seem to expressly hold that the ratification of the treaty gave rise to a substantive benefit. Toohey J said:

It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course.34

Gaudron J said:

Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect.35

The qualification stated by Mason CJ and Deane J in Teoh that there be no executive indication to the contrary was seized upon by the Executive as the government were plainly displeased with the High Court decision. On 10 May 1995 the Minister of External Affairs and the Attorney-General of the then Labor Government issued a joint statement:

…on behalf of the Government, that entry into an international treaty is no reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic law.

A similar Ministerial statement was issued on behalf of the Coalition Government on 25 February 1997. And in 1995, 1997 and 199936 bills were introduced into federal Parliament to give statutory effect to the statement.  None of these bills was passed, although a similar bill passed into law in South Australia.37

The fact that successive governments made three attempts to have legislation passed to reverse the Teoh reasoning demonstrates that the Executive has no confidence that Executive statements achieved their intended effect. This is hardly surprising. First, the statements have been held by the Federal Court to be ineffective.38 Secondly, in deciding the true effect of evidence of executive indication it could be expected that courts would have regard to substance not form. Against the ministerial statements denying any legitimate expectation, there are other official statements that suggest a contrary effect. For example, the Human Rights Manual published in 2004 by the Department of Foreign Affairs Trade39, says:

As exemplified by our contribution to the creation of the international human rights system, and our history of support for human rights, Australia is solidly committed to making the fundamental principles of universality and interdependence of all human rights enshrined in the Universal Declaration a reality for all.40

And:

Australia does not accept the argument that the treatment of human rights constitutes an ‘internal affair’ for any country.41

And in Australia’s National Framework for Human Rights- National Action Plan – December 2004, the Prime Minister commences his forward:

Australia believes that the protection and promotion of human rights is every nation’s responsibility and that the function of government is to safeguard the dignity and rights of individuals, whose lives should be free from violence, discrimination, vivification, and hatred.

Australia has a proud human rights record. ….

But no nation is without its human rights challenges and we do not rest on our laurels. We continue to strive to promote and protect human rights and to address disadvantage…42

Whilst there is still argument about Teoh, I would urge that view that the decision continues torequire that Australia’s treaty obligations constitute a relevant consideration when making a substantive decision which affects human rights.43

A variation of this principle was raised by David Hicks in his proceedings earlier this year in which he sought judicial review of the Government’s decision not to exercise its protective duty to its citizens by requesting the United States to return him to Australia. Hicks argued that the decision was affected by legal error as matters contrary to Australia’s treaty obligations had been taken into account, including that he should be tried before a military commission where the trial process would not accord with the Geneva Conventions or the fair trial requirements’ of article 14 of the ICCPR. In dismissing an application for summary dismissal of Mr Hick’s proceedings Tamberlin J held that this contention was arguable.44

Human Rights in the context of the AAT

There are many Acts under which administrative decisions may be reviewed by the AAT, where the issues involved will impact on human rights. The Teoh presumption that our laws will be administered in accordance with Australia’s human rights treaty obligations will be in the background, both as an influence on the procedures to be adopted during the hearing, and in the ultimate consideration of the merits of the decision.

For example, since Teoh the jurisdiction to review visa refusals or cancellations on character grounds under s 501 of the Migration Act 1958 has been vested in the AAT under s 500, along with jurisdiction to review Ministerial deportation orders of non-citizens residents who are sentenced to one year or more imprisonment under s 200. The AAT also has jurisdiction to review decisions to refuse to grant a protection visa, or to cancel one, under articles 1F, 32 or 33(2) of the Refugees Convention45, or to cancel a business permit or visa. 

Ministerial Direction No 21 issued under s 499 to decision-makers in respect of s 501 refusals or cancellations recognises the CRC obligation to treat the best interests of a child as a primary consideration, notwithstanding the executive governments’ stated responses to Teoh. Paragraph 2.3 of the Direction specifies that there are three primary considerations – protection of the Australian community, the expectations of the Australian community, and the best interests of the child. Interestingly, the Direction also provides that other international human rights treaty obligations which are not incorporated by statute into domestic law may be relevant considerations in the review decision, though generally to be given less weight than given to the primary considerations. Paragraph 2.17 includes;

The extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

  • “Article 23.1 of the ICCPR provides that:

The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.”

Article 17.1 provides that:

“No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Direction goes on to specify OTHER INTERNATIONAL OBLIGATIONS

2.18 Where relevant, decision-makers are required to consider the international obligations contained in this section.

2.19 The [ICCPR] has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture or cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR).

2.20 The [CAT] has an explicit prohibition against refoulement ‘where there are substantial grounds for believing (the person) would be in danger of being subject to torture’.

2.21 The prohibition of refoulement under the CAT and ICCPR is absolute: there is no balancing of other factors if refusal of cancellation would amount to refoulement under the CAT or ICCPR.

2.22 In cases where issues of protection pursuant to the [Refugee Convention] are raised, they must be given consideration in the decision making process.

2.23 If Article 33(1) of the Refugee Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugee Convention. If Article 33(1) applied, then there will need to be consideration whether the non-citizen can claim the benefit of Article 33 (1).

2.24 Notwithstanding international obligation, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.

The need for similar consideration of Australia’s human rights treaty obligations would arise in reviews of primary decisions under s 200, or under the articles of the Refugee Convention.

The requirement to treat the best interests of a child as a primary consideration might arise in quite different and more mundane cases, for example in a review of a decision by the Official Receiver not to increase the actual income threshold of a bankrupt who alleges that contributions cause hardship where there is a dependant child or children;46 or in a review of a ministerial decision regarding wardship under the Immigration (Guardianship of Children) Act 1946.

Another area where human rights issues will be relevant to the work of the AAT will be in relation to exemptions under federal anti-discrimination laws. One of the functions of HREOC associated with its administration of the federal unlawful discrimination laws, is to grant exemptions to entities to relieve them from the application of the SDA47, the DDA48 or the ADA49 in appropriate cases where to do so is consistent with the promotion of the objects of the legislation. In each Act, the AAT is given a right of review of the HREOC decision50.

HREOC has published guidelines on its website51 as to its process for considering exemption applications. As a matter of policy it does not grant exemptions where it considers the proposed conduct of the applicant would not breach the Act, for example because the conduct, although discriminatory, would be a special measure intended to alleviate disadvantage – in other words  to advance  the substantive equality of those whom the Act intends to protect from discrimination. Should there be an application to the AAT to review an exemption decision, it is likely to come from an unsuccessful entity that does not agree with HREOC that the special measure exemption will apply, or from an entity, perhaps an NGO, that objects to the grant of exemption. Such a case will raise directly the construction of the objects, scope and intended operation of the international human right that has been incorporated into Australian law. The interpretive rules earlier mentioned will apply.

In any of these cases the Tribunal is likely to be aided in understanding the meaning and scope of the relevant human right by the wealth of writings by international bodies; in particular in the case of the Refugees Convention by the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status;52 in the case of the ICCPR by the jurisprudence of the Human Rights Committee, the body established under the ICCPR to receive periodic country reports and communications from individuals who assert that their human rights remain without remedy after exhausting all relevant domestic avenues for relief; and in the case of the CRC by the jurisprudence of the similar treaty body, the Committee on the Rights of the Child. Additionally, in many countries international human rights are incorporated into domestic law, and there are decisions of the highest courts which discuss the content of them. Decisions of the European Court of Human Rights, and now the House of Lords are often very helpful.

In a hard case where the meaning and impact of a particular human right requires elucidation, remember that HREOC can intervene to assist by drawing attention to relevant jurisprudence, but it can only consider doing so if it is made aware of the proceedings by the tribunal or a party. The HREOC Act empowers HREOC to intervene, and special purpose Commissioners to appear as amicus curiae, with the leave of a court or tribunal in proceedings that involve discrimination or human rights issues. HREOC seeks leave when it identifies cases which raise important issues of principle, but often it is unaware of such cases until the first instance decision is published, and then can only intervene if there is an appeal. Where it does appear, HREOC is mindful to limit its role assisting the court in a way that would not otherwise be offered by the parties in the matter, for example assisting the court or tribunal about the relevant jurisprudence on a particular issue.

As I mentioned earlier, Australia’s human rights treaty obligations will include the procedures to be adopted during a hearing in the AAT and I now turn to consider what these procedural requirements might be. On procedural matters, the principles developed under article 14 of the ICCPR are always applicable, unless very plainly excluded in a particular case by domestic law. Article 14 includes;

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….

A ‘suit at law’ is to be widely understood, and includes review proceeding before a tribunal like the AAT. The common law requirements for procedural fairness, if followed, would usually meet the requirements of a fair hearing, as indeed would compliance with the provisions of Part IV of the AAT Act, in particular those in s 32 (rights of appearance); s 33(1) (AAT procedures); s 35(1) (public hearing except in special circumstances); s 37 (lodgement of material documents) and s 39 (opportunity for a party to present his or her case).

Recently the Supreme Court of the United States in Hamden v Rumsfeldobserved that under customary international law a fundamental requirement for the fair trial of an accused person is to be present at the trial and privy to the case against him, absent disruptive conduct or consent. How does this stand with ss39A and 39B of the AAT Act, which apply when the Security Appeals Division is reviewing an ASIO security assessment, and prevent the disclosure of certain documents or information to the applicant and his or her representatives?  

Although in these circumstances the AAT will not be hearing a criminal charge, the issues concerned may involve accusations or suspicion of conduct of a criminal nature, and very serious adverse consequences for the applicant. The Human Rights Committee has stated that the fundamental requirements of a fair trial must not be abrogated in any circumstance – this means even in terrorism legislation.54

In so far as these legislative restrictions in the AAT Act are in their terms absolute, they must be adhered to. But while s 39A(8) provides that the disclosure of evidence subject to the Attorney-General’s certificate is prohibited, and s 39A (16) prohibits the giving to the applicant any particulars of the evidence, this should not prevent the Tribunal at least directing the applicant to broad issues that need to be addressed. Drawing the line between disclosing the evidence, or particulars of it, and assisting the applicant to understand the nature of the case to be answered may not be easy, but it is a task which I think the Tribunal must undertake. International human rights law poses the necessary question: what is the least restrictive course open under the legislation?

Furthermore, in so far as the AAT retains discretion as to the way in which the review is conducted, the international human right to know the case alleged, or as much of it as ss 38A and 39A permit, remains a relevant requirement. For example, if the applicant gives evidence or makes submissions as provided in s 39A (13), or further evidence as provided in s 39A (16), or circumstance arise under s 39B (5) where the presidential member is considering whether it is in the interests of justice to disclose a document the subject of the Attorney-General’s certificate, the legislation should be construed and applied so as to reveal to the applicant as much about the case as possible without transgressing the purpose of the legislation.

On another topic relating to a fair trial of any suit, I refer back to the RDA, the SDA, the DDA, the ADA and the HREOC Act. These anti-discrimination laws give effect to two fundamental tenets of human rights - the rights of equal treatment and to non-discrimination. They apply to the AAT, both to its members and to its staff.

From time to time HREOC receives complaints of unlawful discrimination against state and federal courts and tribunals. A fertile area for complaints is a failure to make reasonable accommodation for actual or perceived difficulties experienced by a litigant who has a disability, or for cultural issues that may affect the capacity of a person of a particular racial or ethnic group to present their case55.

In the case of courts, members of the judiciary and officers exercising judicial functions are immune from complaints of this kind, based primarily on the well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity.56

Tribunal members and registrars have the same immunity from suit as a Justice of the High Court, and therefore have the same protection as a superior court judge.57

However, two points must be made. First, the fact that immunity may exist in a particular situation does not mean that a complaint cannot be made to HREOC of unlawful discrimination. The HREOC Act contains a very low threshold for the validity of a complaint,58 and if a written communication to HREOC purports to make such a complaint, HREOC must accept it and commence an inquiry. However, if that inquiry reveals that immunity exists, the complaint will then be terminated on that ground and such a termination enlivens the possibility that a dissatisfied complainant can then apply to the court to test whether immunity exists in the particular circumstances.

Secondly, the immunity does not extend to many of the functions of a court’s administration, so findings of unlawful discrimination can be made against, for example, members of counter staff or associates in respect of conduct when carrying out routine administrative functions.

Human Rights Charters

Finally, a brief reference should be made to Human Rights Charters. All western democracies other than Australia now have charters or bills of rights that give human rights a special status in domestic law, varying from constitutionally entrenched rights to legislative directives and interpretative presumptions. Where human rights are constitutionally entrenched, a superior court can declare an Act to be invalid to the extent of inconsistency with a protected right. In the lesser statutory models courts do not have this power to over-ride the sovereignty of parliament. Rather, the courts are directed to interpret legislation, in so far as is possible in a manner consistent with protected human rights, or if this is not possible  a court may order a declaration of incompatibility which the Attorney- General is obliged to lay before parliament for consideration.

The Australians Capital Territory now has the Human Rights Act 2004(ACT) (the HRA) and Victoria has the Charter of Human Rights and Responsibilities (Vic) (the Charter) passed in June 2006. Both are statutory models of the latter kind.

The HRA and the Charter, like their counterparts in the United Kingdom and New Zealand, protect a range of civil and political rights, but do not extend protection to the economic, social and cultural rights expressed in the ICESR.

These enactments apply only to the laws of the ACT and Victoria respectively59: and a law of the Commonwealth may over-ride them. Charters are under consideration in Tasmania, Western Australia and New South Wales. The present federal government is, however, opposed to the introduction of a Charter. At this point of time, therefore, the AAT and its decision making functions are not constrained by the charter type rights and obligations.

A frequently voiced reason against a Charter is that it would transfer the function of law-making to unelected judges. This might be colourful advocacy, but the proposition does not withstand analysis. Courts for centuries have interpreted legislation – which is often ambiguous and sometimes incomprehensible. Modern rules for interpretation require the court to give effect to the purpose of the legislation, gleaned from the legislation and secondary parliamentary materials – all produced by the elected politicians. The Charters enacted or under discussion in Australia each respect this rule. Whilst directing that legislation should be interpreted in a way that is compatible with the protected rights, courts must do so consistently with the purpose of the legislation.60 This is presently the common law anyway.

The Australian approach is in contrast with that adopted in the United Kingdom Human Rights Act 1998 where the interpretive requirement in s 3 requires: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.61 This directive gives the courts latitude in construing legislation that is not open under the Australian approach, and care must be taken in applying in Australia statements of English courts about interpretation principles in the context of a human rights Charter.

Conclusion

I hope this paper has shown that international human rights principles are now influencing Australian laws and their interpretation to a very considerable extent. When it is also recognised that the common law and the procedures which govern litigation extensively incorporate human rights principles, it can be seen that the principle that human rights are universal is generally respected in the Australian legal system.


[1] Article 1 of the Charter states one of the purposes of the UN to be co-operation ‘in promoting respect for human rights and fundamental freedoms for all’.

[2] The Commission on Human Rights is one of the functional commissions of the UN.  It was established pursuant to Article 68 of the Charter, which provides that the Economic and Social Council of the UN “shall set up commissions… for the protection of human rights.”  The Commission was replaced by a new Human Rights Council in September 2005. The Council first met in June 2006, and is now a standing committee of the General Assembly.

[3] GA Resolution 217A(III); UN DocA/810 at 71

[4] There had been discussion of the ‘rights of man’ from the times of the Greek philosophers; the Magna Carta recognised common law principles of due process and habeas corpus; and the American Declaration of Independence of 1776 and the French Declarations of the Rights of Man and the Citizen of 1789 referred to the concept of all men being born equal.

[5] 999 UNTS 171, entered into force on 23 March, 1976, except for Art 41, which entered into force on 28 March, 1979.

[6] 993 UNTS 3, entered into force on 3 January, 1976.

[7] Australia ratified the ICESCR on 10 December 1975, and the ICCPR on 13 August 1980.

[8] There are two optional protocols to the ICCPR. The first gives individuals the right to complain of violations of their rights before the CHR and the second prohibits the use of the death penalty.  They came into force on 23 March, 1976 and 11 September, 1991 respectively.

[9] See UDHR Articles 6-12.

[10] See UDHR Articles 21 and 28.

[11] 660 UNTS 85, entered into force on 4 January, 1969, except for Art 14, which came into force on 4 December, 1982.

[12] 1249 UNTS 13, entered into force on 3 September, 1981.

[13] 1465 UNTS 85, entered into force on 26 June, 1987.

[14] 1577 UNTS 3, entered into force on 2 September, 1990.

[15] Entered into force on 1 July, 2003. Australia is not a signatory to this Convention which has received a low take up by nations.

[16] This is the express obligation accepted by signatories to the ICCPR, Article 2(1). In the ICESCR, where the recognised rights are ‘distributive’ rights dependant on the availability of resources, the obligation is to take steps…to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant…, Articles 2(1).

[17] Australian Department of Foreign Affairs and Trade, Human Rights Manual (3rd Ed.) 2004 at 15, 23.

[18] This is the case in Australia; see Dietrich v R (1992) 177 CLR292; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; re East; ex parte Nguyen (1998) 196 CLR 354 at[19]

[19] Applicant A v Minister of Immigration and Ethnic Affairs (1997)190 CLR 225,230-231

[20]Pilkington v(Australia) Ltd v Minister of State for Justice and Customs (2002)FCR92 at [26]

[21] Minister of Foreign Affairs and  Trade v Mango (1992) 37 FCR298, 303-305

[22] AB v Registrar of Births, Deaths and Marriages [2007]FCFCA 140 [14]-[16]

[23] IW v City of Perth (1997)191 CLR 1 at 14, 22-23, 27, 39,  41-42 and 58.

[24] The Convention relating to the Status of refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[25] Mango, supra, at 305.

[26] Plaintiff 157/2002 v Commonwealth (2003)211 CLR 476 at [28]-[29] per Gleeson CJ

[27] Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38.

[28] (1995) 183 CLR 273; [1995] HCA 20.

[29] At  291 [34]

[30] At  291 [36]

[31] For example, Sanders v Snell (1998)196 CLR 329 at 351; Victoria v Commonwealth (1996) 187 CLR 416 at480-482; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1; 77 ALJR 699.

[32] Supra at [81]-[102], [148].

[33] Minister v Lam, supra at[148]

[34] 183 CLR at 302, [32]

[35] 183 CLR at 305, [6]

[36] The Administrative Decisions (Effect of International Instruments)Bills, 1995 and 1999

[37] For a summary of the government responses, see In the wake of Teoh: Finding an Appropriate Government Response, Wendy Lacey (2001) 29 Federal Law Review 219 at 224.

[38] Department of Immigration and Ethnic Affairs v Ram (1996) 68 FCR 431.

[39] With a forward by the Minister for Foreign Affairs saying that the manual highlights the Government’s position on human rights issues.

[40] At pg 1

[41] At pg 4. In relation to children, at 86, Australia has been assiduous in meeting its international commitments to protect and promote children’s’ rights.

[42] And see The National Action Plan at pgs5, 11-12.15, 17.

[43] For an academic article in support of Teoh, see A Prelude to the Demise of Teoh: The High Court Decision in MIMA; ex parte Lam, Wendy Lacey, (2004) 26 Sydney Law Review 131.

[44] Hicks v Ruddock [2007] FCA 299.

[45] Article 1F concerns asylum seekers guilty of serious criminal conduct or acts contrary to the purpose and principles of the United Nations, and articles 32 and 33 concern respectively expulsion of a refugee on the round of national security or public order, and refoulement.

[46] See the Bankruptcy Act 1966 s 139T (6), (7) and (8).

[47] SDA, s44

[48] DDA, s 55

[49] ADA, s44

[50] SDA, s45; DDA s56; ADA, s45.

[52] HCR/1P/4/Eng/REV.2

[53] (2006) 126 S.Ct 2749

[54] General Comment No 29; States of Emergency (Article 4), 31 August 2001, 16.

[55] For example, the RDA, s9(2) and Article 5(a) prohibit racial discrimination that involves a distinction, exclusion, restriction or preference that impairs equality before the law, and the right to equal treatment before tribunals.

[56] Re East; ex parte Nguyen (1998) 196 CLR 354 at[30]

[57] AAT Act, s 60.

[58] See s 46P(1)-(3)

[59] It is possible, however, that these enactments may influence the interpretation of uniform legislation in other States: see Hon Sir Gerard Brennan “Introduction to Human Rights Law” (2007) ALJ 248 at    250.

[60] In the case of the HRA, see s 139 of the Legislation Act (ACT) which requires an interpretation that best achieves the purpose of the law; and see The Human Rights Act 2004 and Administrative Law: A Preliminary View, Peter Bayne, AIAL Forum No 52, p3. In the case of the Victorian Charter, see s 32; and see Some Reflections on Victoria’s Charter of Human Rights and Responsibilities, Pamela Tate, SC, AIAL Forum No 52, p18.

[61] This reflects the object of the UK Act which is to give effect to the rights and freedoms guaranteed under the European Convention on Human Rights

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